Narayana Shenoi vs Raya Prabhu

P.T. Raman Nayar, J.—Section 4 of Act 31 of 1958 (and, as a consequence of sub-section (2) thereof, section 5 applies notwithstanding any decree or order of court, which expression would include an order made u/s 7 of the Act amending a decree by applying the provisions of the Act. Therefore, an executing court is bound to apply the provisions of sections 4 and 5 notwithstanding an order made u/s 7. Ordinarily, however, the principles of res judicata would preclude it from making any change and there would be no question of the executing court applying once again the provisions of the Act which the amending court had already applied. But, in this case, the provisions applied by the amending court were the provisions of the original Act, before Act 2 of 1961, by amending section 5, conferred a new benefit on the debtor, none the less new and unavailable when the amendment was ordered for having been given with retrospective effect from the date of the original Act. This new benefit was not, and could not have been, taken into account when the amendment was ordered u/s 7. Therefore, there is no question of res judicata and the executing court is bound to give effect to the provisions of the new section 5 notwithstanding the order for amendment. The case reported in C I. & B. Syndicate Ltd. v Sarvothama Kammath (1963 K. L. T. 947) is a case of a second application for amendment u/s 7 and has no direct bearing on the question here involved.